MARITIME LAW |
Harbours |
North Vancouver (City) v. Seven Seas S.R. (The)
T-503-99
Dawson J.
13/9/00
26 pp.
Request for determination of following question of law: whether lease entered into between parties in 1982 operated, as matter of law, to supersede all prior agreements, written or otherwise, and all rights of parties vis-à-vis each other, such that defendants' right to continued use, occupation of water lot terminated upon termination of 1982 lease, all agreements subsequent thereto--In 1958, plaintiff's city council decided to discontinue ferry service between Vancouver and North Vancouver, take old ferry dock, operate it as marina--Defendant ship sold to Seven Seas Seafood in April 1959--Plaintiff, Seven Seas Seafood entered into lease for water lot dated April 27, 1959--Harry Almas, Seven Seas Seafood subsequently expended in range of $120,000 to $150,000 in refurbishment of defendant ship from passenger/car ferry to floating restaurant--Defendant ship moored in waters above water lot since 1959--Various leases made, renewed, amended between 1959 and 1982, all permitting defendant ship to be moored on water lot--1982 lease between plaintiff as landlord, S.S. Marina Ltd. as tenant and Cranberry Sailor Inn Limited as covenantor of obligations of S.S. Marina--In 1994, S.S. Marina, Cranberry Sailor Inn failed to pay rent due under 1982 lease--Landlord terminating lease effective January 31, 1996--Plaintiff requiring defendant ship to be removed before January 31, 1999--As ship not removed, plaintiff commenced within action on March 18, 1999--Defendants asserting permanent right to moor defendant ship on water lot--Nothing in 1959 purchase agreement or in initial lease consistent with argument agreement, conduct of parties led to creation of equitable interest in subaquatic lands such that defendants acquired permanent right to moor--Express terms of initial lease contrary to defendants' current position permanent right of moorage acquired--Also inconsistent with assertion parties never directed minds to nature of interest given by plaintiff when ship sold--"Permanent" as defined in Black's Law Dictionary means "generally opposed in law to `temporarily', but not always meaning `perpetual'"--City clerk's language consistent with intention, agreement ship should be moved to where it would be permanently moored until lease expired or terminated for breach--Comments made in 1963 by counsel for defendants' predecessors inconsistent with right of permanent mooring now asserted--Subsequent lease negotiations between plaintiff, defendants' predecessors not supporting defendants' argument they possess equitable interest--Nothing in documents before Court, in agreed statement of facts, supports enforceable legal right entitling defendants to permanent right of moorage on water lot--Effect of articles 2.02, 16.05 of 1982 lease that plaintiff's argument that 1982 lease superseded all prior agreements between parties must be upheld in absence of contrary considerations--Defendants failed to present evidence of any other agreements, to show contrary considerations--Defendants not assisted by public right of navigation in tidal waters--Defendants' claim not supported by public trust doctrine--Question of law answered in the affirmative.